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State v. Pineo6/7/2002
Robert Pineo appeals from a judgment of conviction of two counts of aggravated assault (Class B), 17-A M.R.S.A. § 208 (1983), one count of aggravated OUI (Class C), 29-A M.R.S.A. § 2411(6) (Supp.2001), and two counts of driving to endanger (Class E), id. § 2413 (1996), entered after a jury trial in Superior Court (Cumberland County, Cole, J.). Pineo challenges the admissibility of a blood-alcohol test and the imposition of multiple convictions and consecutive sentences. We modify the judgment to correct one minor error and affirm as modified.
I. BACKGROUND
[ 2] On the night of August 21, 2000, Robert Pineo was driving on the wrong side of Broad Turn Road in Scarborough when his vehicle nearly collided with three other vehicles. He then drove his pick-up truck head-on into a car driven by Sarah Buckingham, causing injuries to her, including a broken wrist, and permanent injuries to her mother, Diane Buckingham. [FN1] Pineo's blood-alcohol level was 0.16%.
FN1. Diane Buckingham's injuries included a shattered jaw, two shattered wrists, a leg broken in three places, loss of hearing, and permanently impaired vision. She was in an induced coma for several days and was hospitalized for six weeks. She had numerous surgeries and faces the prospect of several more. Because of multiple permanent disabilities, she may never be able to return to work.
[ 3] Pineo waived indictment and was charged in a five-count information. [FN2] He filed a motion in limine to exclude the results of the blood-alcohol test. The court held a hearing on the motion immediately prior to trial. Department of Human Services chemist John Bangeman testified that he had performed the test on Pineo's blood using a gas chromatograph, as part of a series of tests of blood and breath samples and tests using certain controls. He noted some anomalies in the tests but opined that under DHS standards the anomalies were not scientifically significant; that his tests established the absence of contamination and the accuracy of the machine's ethyl alcohol measurement; *1096 and that he saw nothing that would affect the integrity of that measurement. Pineo's expert, chemist Patrick Demers, testified that the anomalies noted by Bangeman should have been a red flag requiring further investigation, because they could have been caused by a problem with the machine or by some outside contamination. He opined that Bangeman's test of Pineo's blood was scientifically unreliable.
FN2. Count 1 charged Pineo with aggravated assault by causing serious bodily injury to Diane Buckingham. Count 2 charged aggravated assault by causing serious bodily injury to Sarah Buckingham or by causing bodily injury with the use of a dangerous weapon, that is, a vehicle. Count 3 charged aggravated OUI by alleging operating under the influence or with a blood-alcohol level of 0.16% and causing serious bodily injury to Diane Buckingham or Sarah Buckingham. Count 4 alleged driving a motor vehicle in such a manner as to endanger Diane Buckingham or Sarah Buckingham or the property of either. Count 5 alleged driving a motor vehicle in such a manner as to endanger Elizabeth Pike or her property.
[ 4] The court found that the test was sufficiently reliable to present to the jury and denied the motion in limine. At trial, the witnesses included Bangeman for the State and Demers for Pineo. The jury found Pineo guilty on all counts.
[ 5] Before sentencing, Pineo filed a motion to dismiss the aggravated OUI count and one driving to endanger count on double jeopardy grounds. The court denied the motion at the sentencing hearing. [FN3] The court sentenced Pineo to ten years imprisonment on the two aggravated assault counts, concurrent with each other; five years imprisonment on the aggravated
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